Thursday, June 30, 2011

I have often explained how I can represent someone whom I know to be guilty. What I didn't do was to go a bit further and deal with the phenomenon of sincerely liking a client, the gravitas of his conduct, notwithstanding. This is kind of a "don't talk about it too loud" area, and I was, at the time, quite selective as to whom I would tell it. But that was years ago, and now is now, and my recollection of it remains fresh. So here is the story.

Years ago, I was associated with a nationally prominent attorney, reputed to be number one in criminal defense work. He was the best I had ever seen. He was blessed with an extraordinary brain. In our suite, my office was next to his.

A Chicago resident, one "Mikey", in no way a stranger to the Feds, was indicted on an organized crime racketeering charge. He set out to interview various lawyers, with outstanding credentials. This endeavor brought him to Boston, where he had a sit-down with the ultra successful attorney. I was at work, in my office, hoping that we would land the case. After approximately 45 minutes, the meeting ended and I heard the men exchanging pleasant goodbyes. Mikey turned left, towards the door at the end of the corridor and, of necessity, passed me on the way out. My door was open. He stopped, looked at me and asked,"You the number two guy on the letterhead?" I answered that I was. He came in, with his companion, and wanted to chat. We did so, for an hour. His questions were widely varied. During the winding- down process, he asked what my fee would be if he chose to retain me. I did not question him, in any way, about his encounter next door. I quoted a fee, he said thanks and that he would be in touch.
Three days later, he called me and asked me to come to Chicago for more discussion. I met with him the following day.

He had been thinking. He knew what he was looking for. His search for representation was over. He wanted me. "Whaddayusay?" I said yes. He stood, as did I, and extended his hand. We "shook" and that was that. No written fee agreement. To him, the primo factor was mutual trust, and that had just been formalized. I went to work.

Being obsessed with everything in life, most particularly with trial preparation, I would frequently travel to Chicago every week, staying for three days. When work was done, Mikey would take me to the finest restaurants in town. From the moment he entered, with his entourage--and me--the maitre d' and the waiters would fall over themselves to pay him tribute. The place could be filled with notables, movie stars and stage actors, etc. who suddenly became invisible when Mikey was seated.He would acknowledge all of this by palming a double-sawbuck (twenty bucks, Dude) into the grasps of the adoring employees. When he put a Cuban cigar in his mouth, his face was eclipsed by a dozen match-holding hands. And his clothes! All that was missing was a runway. Designer suits, alligator shoes--straight out of casting, only he was the real McCoy. His desire, as a host, was for his guests to indulge in the best of everything, expense be damned. He was the Master of Ceremonies throughout the meal. Straight talk blended with earthy humor. And this was an every night occurrence. Heady stuff for a thirty-five year old, but , it was so sincere, coming from someone with a dangerous turn in the road looming. His charm was contagious.

I was, always, talking about my young son and his hobby of photography. On my next trip, he gave me a terrific Canon SLR camera complete with carrying case, saying "This is for your boy". And when my "thank you's" became excessive to him, he 'd get a wee bit pissed. That was Mikey.

When the trial was winding down, three days to go, my wife and son flew into Chicago. Mikey didn't think my modest hotel was fit for the occasion. He reserved a new room at one of the city's finest. I gave my wife the location with instructions to take a cab from the airport. When I arrived from court, I found her and my son in a single room. I had a cot brought in, which, with the two twin beds, would accommodate three, but it was cramped as hell. There would be, however, no complaints to Mikey.
The next morning, I navigated into the bathroom, and, in the middle of my shave, we lost all power. Shaving in the dark resulted in four whopping face cuts. I had candles brought up and covered the bleeding with toilet paper. (Buffy and Stosh would say tissue.) There's an old line. "When you were born, the doctor didn't know which end to slap." I was that joke's truism. I looked like a rectum with eyes. When Mikey saw me walk into the courtroom, he wanted to know what the hell had happened to me. When he heard the story, he went into a huddle with four of his "constant companions". They went directly to my room, packed everyone's belongings, drove to an even higher level hotel and established occupation of the largest suite in the freakin' world. Neatly put everything away, finally stopped apologizing, and bade farewell. Five rooms. A wet bar. T.V.'S and telephones everywhere! I wanted to notify my Post Office of a change of address. And that was Mikey.

It was a Friday. Closing arguments. I gave it my all. The judge adjourned until Monday for jury instructions and deliberation. I told Mikey that I was flying to Boston with my wife and son and would return early Monday. The next morning, 9 a.m. the phone rang. Mikey was in the lobby and wondered if I could meat him in the coffee shop for breakfast. I told him to eat me. (JUST KIDDING, FOLKS!)
I found him and his boys in a booth and joined them. Midway through, he caught my eye and motioned with his head to follow him. We walked into the rest room and he looked under every door to make sure we were alone. He then turned to me.
"Your closing argument was great. So was the way you represented me during the whole trial. I'm convinced that nobody could have done a better job than what you did for me. Believe me, I know how flakey a jury can be, but nothing can change what I just said." He reached inside his suit coat pocket and pulled out an envelope. "This is for you, kid." I thanked him profusely and we joined the others. Only when I returned to my room did I open it. It was the fee, all over again.
And that was Mikey.

Two days later, the jury found Mikey guilty. As the verdict was read, I felt as if a mule had kicked me in the gut. I turned to look at him. He was standing erect, looking straight ahead. The judge announced the sentence right then and there. A total of thirty-five years. He was placed under immediate arrest and was taken to the holding dock in the basement of the federal courthouse. I had to wait for paperwork to be done before they would let me see him. When I finally entered the holding area, my face must have reflected what I was feeling inside. Mikey yelled at me. "What the hell do you have a long face for? I'm the one that's gonna do the time. If I can smile, then, Goddammit, so can you!" And, despite everything, he was smiling.
And that was Mikey.

I would often visit him at the federal penitentiary. His official job was "librarian." In actuality, he was the "jailhouse lawyer", writing appeal briefs and advising inmates who stood in line for his services.
Always, at least on the surface, in good spirits. Always with that warm smile. Never allowing himself to be broken.

Ultimately, he was released from prison and rejoined his wife and family. I can never forget him and his strength of character. I fully appreciate the serious nature of his crimes. But, Heaven help me, he was a man.

Monday, June 27, 2011

Representative Michele Bachmann has announced her candidacy for President of the United States. Pass me the shotgun, Mumma, there's a fly on baby's head. Rejoice! There ain't no global warming, the just-about-100% opinion of the scientific community, notwithstanding.

To acknowledge her due, she genuinely believes in what she says. She doesn't duck when accused of embracing Tea Party views. She is the Tea Party. And, if she, in general language, edges a teeny- weeny bit towards moderatism, and she will, then the best thing she has going for her is Mitt Romney being the frontrunner. The Tea Party's mantra is "Anybody but Romney." Should a moderate Republican (see Jon Huntsman) surge to the top, and the G.O.P. majority kicks in, she will be stripped of staying power. Stay tuned.
.................................................................................................................................
Former Illinois Governor Rod Blagojevich was found guilty, by a jury, of various felonies centering upon a conspiracy to sell the Senate seat, vacated by President Obama, for monetary gain. The driving force was the broad language defining the federal crime of conspiracy. If the Guv had engaged in whimsy, speculating about what might come his way in return for bestowing the seat to this or that guy, no crime. Should he verbalize this ambition in a quid-pro-quo proposition, crime. Putting it another way, if you aspire to be appointed to the state supreme court, and be overheard (tapped) saying,"I'm making a large contribution, Governor, to your campaign. I'm eyeing a supreme court judgeship," and the Guv. says,"You've got it!", the federal crime of conspiracy has been committed. If, however, you make the contribution and subsequently let your ambition be known to a third party, who transmits this sentiment to the Guv. and you get the appointment, everybody is clean.

No deal was ever consummated by Blagojevich. He didn't make a dime. A victimless crime. And yet, he faces a lengthy federal prison sentence for having betrayed the public trust (see prior post).
There is something wrong with this picture.

Elected officials, judges, teachers, doctors, lawyers.
Anyone, whose occupation is deemed to be a service rendered in the public interest, is considered to be the recipient of the public trust. Their conduct is extra-heavily and continuously scrutinized by the media. Fair enough. If you run for public office, you know this going in. It's a circumstance you accept, a risk you assume. It seems to me, however, that should a public figure commit a crime, the betrayal of public trust is invoked as a holy grail, spurring demands for double punishment. The outcry reminds me of spectators at a gladiator fight, flashing a thumbs-down verdict of no mercy. Throw compassion in the closet. This is not as it should be. It bothers me.

I am not advocating that the wrongdoer be given a pass. My proposal is to level the playing field of punishment. Let there be a comprehensive consideration of the offender's past conduct which has benefitted the public. Aberrations happen. The built-in stigma of public disgrace has already made its mark. Many years ago, I represented an attorney who had admitted to sufficient facts in a case involving his having pushed his wife during a heated argument. It was his wife who had called the police and pressed the charge. The attorney had been an elected town official. The Board of Bar Overseers held a hearing on the question of suspending his license. He and his wife had reconciled. She pleaded with the Board not to cut off his ability to financially support his family. I was interrupted, in my closing argument, by a Board member, who asked,"where is the punishment if we do not suspend?"
My response was to ask if he did not consider an attorney, handcuffed, in the prisoners' dock, in full view of the press and the public whom he had once represented, as constituting punishment per se. Deaf ears. Six month loss of license. This inherent double-layered punishment should not be casually ignored.

Let the punishment be in accordance with the actual harm suffered by the public.

Translate the offense into dollars and cents. Use that as the standard for determining the degree of punishment warranted for betraying the public trust. If the public has been financially defrauded, let the amount be the primary factor in promulgating a just sentence. The concept of a lenient sentence should not be dismissed "just because".

With the passage of time, the public's wound will heal.
The brand of a scarlet letter shall adorn the public figure, forever.

This is not a violent crime. We're not dealing with a danger to the community.
Compassion is not a betrayal of the public trust.

Saturday, June 25, 2011

It is the solemn duty of a criminal defense attorney to hold nothing back in his effort to obtain the best possible result for his client, even if he believes the client is guilty. If you recoil from such a hypothetical, if this knowledge, subjectively, prevents you from expending 100% effort, you cannot, you must not, choose criminal defense work. That is why this area of the law is undertaken by a relative few. I completely understand this disqualification of the many. Often, they will turn to another field of law and probably make a helluva lot more dough.That's the way it is.

But, every once in a while, this dormant conflict presents a moral morass, which pushes a lawyer's envelope to the limit. Tears him up inside, so that the results, although certainly a "victory", leave him soulfully branded, forever. And a brand, like a scar, is permanent. Such is the source of gray hair turning to white, and the the appearance of "crow's feet" in the eyes, as a criminal defense attorney is baptized and then matured by the agonies and ecstasies of many criminal cases. As in all things, hard work and pressure take their inevitable toil. But you know that, and, you assume that, going in. It's the juice that you dig.

A young woman was reported missing by her parents. Her father told the police that she had not come home the night before, from a date with the defendant, Smith. Shaken and angry, he set forth this scenario:
When he was first introduced to Smith by his daughter, he took an immediate dislike to him. There was something about him, something he sensed. He constantly urged his daughter to break off the relationship, but she was in love and listened only to her heart. The relationship continued while the father's anxiety steadily increased. He was obsessed by a fearful apprehension that something bad would happen. The last time he saw her was the night she had planned to meet Smith. He was certain that she was a victim of violence. Staying out all night, without calling, was something his daughter would never do. Talk to Smith he pleaded, over and over. Talk to Smith.

Two nights and no word. The detective assigned to the case interviewed Smith who acknowledged the affair but denied any wrongdoing. The absence of hard incriminating evidence obviated a right to arrest. No probable cause.

Eighteen months passed. No leads. A seemingly dead end. The father, never abandoning his accusatory accusations of Smith, had lost patience with the police. A broken man, suffering incomprehensible grief, he decided to take matters into his own hand. He enlisted the help of a "group", friends of his son. This group began following Smith, getting to know his patterns of behavior. One night, pursuant to plan, they abducted Smith on a street near his home. Four of the group jumped him and began punching him. They threw him into a waiting car and drove to an empty cabin in the northern part of the state, belonging to a member of the group. During the drive, Smith was beaten further and his life was threatened several times. He was convinced he was on a one way trip.

At the cabin, the beatings and threats to kill continued. Finally, Smith broke and confessed.
On the night in question, he had met with the daughter at a predesignated remote street corner. She told him she was pregnant. He asked if he was the father. She slapped him. He struck her in the face. She fell, hit her head on the curb, and lay motionless. He thought she was dead. He carried her down a hill to some abandoned railroad tracks, wrapped her in a blanket he found there, dug a shallow grave with his shoes and buried her. He declined to specify the exact location of the body but was willing to lead the group to where it was.

He then seemed to relax. The bullying, and threats to kill, stopped. A calmer atmosphere prevailed. The group drove Smith to the area of the attack, during which time he repeated his admission, several times. Ultimately, the grave was located and the daughter's body unearthed. The police were notified. The father was notified. Oddly, Smith was released and he went home. The legal process began. Smith was indicted for second degree murder.

His attorney correctly analyzed that his only remedy was to have the confessions suppressed. The first, on the ground of coercion, the others on the doctrine of "fruits of the poisonous tree." He filed the appropriate motion. The trial judge found that the initial confession was, indeed, involuntary and therefore, suppressed. The subsequent statements, however, were deemed to have been made of Smith's free will. The atmosphere had changed. The coercion had vanished. They were ruled admissible. The trial was, therefore, a no- brainer. Guilty as charged. Imprisonment for life. Smith's parents wanted a different lawyer. They asked me to write the brief and argue the appeal.

I read all pertinent transcripts. There was no question as to Smith's guilt. He was a psychopath. He had murdered the daughter, buried her, and walked merrily on his way. Never looked back. Continued his life without missing a beat. Decapitate you and eat spaghetti off your shoulders. But the trial judge's rulings on the motion to suppress were so tortured as to cross the border into ludicrousness. The appeal would, in no way, suggest Smith's innocence, but would focus, instead, on a constitutional question of law. This was no legal loophole. A very attractive challenge, Smith's guilt, notwithstanding. I took the case.

I worked long and hard on the brief. One could barely navigate through my office, so great was the number of law books piled on the floor. The end product mirrored the magnitude of the effort. After oral argument, the high court, in a four to three split decision, affirmed the whacky trial court's legal finding but, in its general powers of superintendence, reduced the murder conviction to one of manslaughter. It was as if the court recognized the violation of due process but, faced with Smith's unequivocal guilt, was not about to permit his return to society. It ain't supposed to happen that way and it would, of course, never be acknowledged, but the justices were, after all, human beings subject to the frailties of conscience. The matter was remitted to the trial court for re-sentencing.

What a day that was. The judge was beet-red furious at what he perceived to be a travesty of justice. The tension in the courtroom, with both sets of parents present, was so tangible that you could grab it with your hand. The judge addressed Smith directly. "We shall never know whether your victim was dead or alive when you buried her. You shall always have blood on your hands."
The sentence was the max. Eighteen to twenty in state prison. Better than life, I suppose.

I packed up my briefcase and headed for the elevators. I pushed the down button and waited. And then I heard it. A voice in anguish. Anger and pain. It was the victim's father.

"Well, do you feel proud of yourself? What kind of a lawyer are you? You're going to your nice home while my daughter rots in the ground. Shame on you. Shame on you."

I turned to face him. A spent man ravaged by grief. I said nothing. What he had been, and was, enduring was against the natural order of things. A father buries a child. My God.
I said nothing. What could I say? The elevator door opened. I entered, half expecting the father to follow me, but he didn't. I could not dare to imagine myself in his place. Could not even bear the thought.

To this day, I have remembered his words. Always will. Yes, from a legal standpoint, I could claim the results as a victory. But no, my conscience would have none of that. I had successfully discharged my duty as a defense attorney, but it had been for a rotten cause. It's never a permanent glory road. And some bumps you never forget. This is one of them.

Thursday, June 23, 2011

Everyday, you are the recipient of one-liners which have, apparently, become linguistic symbols. Even assuming that they are uttered with the best of intentions, they tend to drive me nuts, which doesn't require that much gas. Therefore, I shall set forth the slogans of which I complain along with my suggested responses which, if steadfastly adhered to, shall, slowly but surely, act as adhesive mouth-tape.

"OKAY?"
The person talks in question marks. After every few words, "okay" is inserted. Every time this happens, interrupt with "it's okay with me."

"HAVE A GOOD ONE."
"Do I look like I'm walking into the men's room?"

"ENJOY!"
"How did you know I was having a colonoscopy this afternoon?"

"HOWZIT GOIN'?"
"You mean with my case of the clap?"

"AT THE END OF THE DAY."
"Better to think of the end of the lay."

"IF YOU WILL."
"Dammit, I won't! I won't!"----each and every time.
---------------------------------------------------------------------------------------
An awkward segue, to be sure, but I've exhausted my list and shall, therefore, revisit the legal arena.
A criminal defense attorney can't win 'em all. When he loses a heavy case, it is quite possible that the client will wind up in state's prison. Your first visit to him can be most awkward. Knowing you did your best is no solace to him. He's on a long stretch to nowhere. In such a situation, I would usually address him thusly:

"John, I can only imagine how depressed you must be. But, I want you to know that I have already filed an appeal to the Massachusetts Appeals Court and, failing that, I shall make further appeal to the Supreme Judicial Court, the highest court in the state. And, if necessary, I shall file a Writ of Certiorari with the United States Supreme Court. In short, John, I shall leave no legal stone unturned in my efforts to free you.
In the meantime, however, I advise you to carry on with your plans to escape!"
-----------------------------------------------------------------------------------
'Till next time, I leave you, my readers, with this question. Ponder it carefully. The winner T/B/A. In the case of a tie, a tie shall be awarded.

In Shakespeare's MacBeth, when Lady MacBeth cries out,"Out, dammed spot!", why does she want the dog to leave?

Sunday, June 19, 2011

You live in a neighborhood where your neighbors are, uniformly, believers in a different religion. That's "religion" singular. No diversity in their faiths. Your neighbor is convinced that you have altered the plot plans set forth in your deed. He accuses you of claiming too much land. You attempt to explain that, many years ago, this issue was raised by his predecessor and went to arbitration. Your proclaimed real estate boundaries were vindicated. They were affirmed. Your neighbor disagrees, vehemently and violently. He attacks you and a horrific fight ensues. You kick his butt, decisively, and you view the matter as settled. But, defeat is non-digestible to your neighbor. Too humiliating. His emotions boil over. His mistrust and dislike for you intensifies. Now, he is driven by hatred. Unrestrained. A helluva situation in which to expect two neighbors to put aside their differences and live peacefully, side by side. You try to talk with him. Let's accept each other for what we are, and call it a truce. He will have none of it.

Now, all the other residents join the dispute. They unequivocally agree with your neighbor. They are united by the common denominator of hatred of you. The next attack will significantly increase the odds against you. Suddenly, the stakes are not just land, but rather, survival. The readily acknowledged position of the neighborhood is not to merely take away your land, but also, to kill you. They will use deadly force, justifying your relying on same for self defense. You remember that, years ago, you had been in a situation where you were very late to stand up to a bully. That won't happen again.

You continue to press for a dialogue with those around you with two pre-conditions: you all agree to recognize each other's existence, and, that they forswear their intent to kill you. This proffer is rejected out of hand. How then, you ask yourself, can you negotiate with people who refuse to negotiate. You want to discuss compromise, but the word is an anathema to them. Your only alternative is to punch back when punched, stay alert and still cling to the hope that the table of discussion and compromise shall one day be embraced as the only way to even begin to resolve this complicated scenario.

Friday, June 17, 2011

Many years ago. The British army stationed in India. A new Lieutenant was assigned for duty and, in conformance with custom, reported to the commanding Colonel and presented his credentials. He stood before the colonel's desk, smartly snapped his heels and announced, "Lieut. Faversham reporting for duty, sir!"
The aging, mustached Colonel, in deep study of papers before him, slowly looked up.
"Faversham! Welcome to India! I've been looking over your papers and taken note of your splendid background. Now, I must tell you one thing, straight away. Sooner or later, during your tour here, you will come upon the dread punji snake. You can't miss it when you see it, Faversham, it's a long yellow snake with black stripes around it. If ever you come upon this snake, do not run from it, for with its superior speed, it shall surely overtake you and kill you. If ever you encounter this snake, you must stand your ground, grab the snake with your wrist, slide your wrist up to its neck, and with your forefinger, pierce its jugular!!"
The Lieutenant, at ramrod straight attention, firmly replied,"Very good, sir!!!"

Three weeks later, the Colonel saw the Lieutenant, covered, from head to toe, with bandages, splints and plaster casts.

"My word, Faversham, what's happened to you, old boy?"

"Sir, just two weeks after our initial meeting of three weeks ago, I was leading a patrol across an open field, when suddenly, darting its head above the knee-high grass, was the punji snake, just as you described it, sir, a long yellow snake with black stripes around it. Remembering your advice, I did not run from it for fear that, with its superior speed, it would surely overtake me and kill me. I rather stood my ground, grabbed the snake by my wrist, slid my wrist up to its neck, attempted to pierce its jugular with my forefinger, and found that I had injected my finger into the a-hole of a tiger!!!"

Thursday, June 16, 2011

On August 11, 2011, the Massachusetts Supreme Judicial ruled that the odor of burnt marijuana is not enough for officers to order a person out of a parked car, since the possession of one ounce, or less, of pot is no longer a crime. In 2008, the voters voted to decriminalize the possession of this limited amount. It is, now, a civil offense punishing an adult with a $100.00 fine.
A close examination of the facts of the case is mandatory.

Two police officers spotted a car illegally parked in front of a fire hydrant. The officers approached the two people seated in the car. One officer stood next to the driver's side, while the second officer stood near the passenger side. As they spoke to the occupants, one officer smelled a "faint odor" of burnt pot. When asked whether they had been smoking pot, the driver said that he had smoked earlier that day. The officers ordered the driver and passenger out of the car. One cop asked the passenger whether he "had anything on him." He told the officer that he had some drugs with him. The officer searched the passenger and found crack cocaine in his pocket. The Court ruled that the odor of burnt marijuana, alone, was not a sufficient reason for the police to order the passenger out of the car. It held that to order an occupant out of a car, based merely on suspicion of an offense, that offense must be criminal.
The cocaine possession conviction was tossed.

This is tortured judicial reasoning. Nevertheless, as a criminal defense attorney, this decision is music to my ears. But, as an objective blogger (an oxymoron), my common sense is swooning.
I believe that the intent of the Massachusetts voters was to decriminalize getting high in your home, possessing no more than an ounce of pot. No, the referendum was not worded that way, but consider the alternative: walking around in public, stoned, and carrying an ounce or less. If you feel the buzz to be declining, you turn on again, and so on, and so on. Your goal is to get and stay as high as possible. You're the guy giggling with every step. And I, for one, would rather not bump into you, especially if I were with family. I condone doing a joint in your own pad. Digging sounds or laughing at atrocity films.
If you venture out, let someone else drive, for to do so under the influence of pot is a crime. I am advocating staying cool, and not calling public attention to yourself. If you're going out to a music scene, smoke at home before you leave and don't drive. You can legally carry less than an ounce, but don't use in public, unless it's a Woodstock scene.

Now, for the case at hand. The car was illegally parked, with two occupants.This justified a approach by the two cops. Then they smelled burnt marijuana. The suspicion that more than one ounce of marijuana could be involved was not unreasonable. Therefore, ordering the occupants out of the car was o.k. Accordingly, finding the cocaine should have been deemed o.k., as well. I'm not saying that the end justifies the means, but the crux of the case is whether the police had the right to order the occupants out of the car. I' no prude, but I say they did.
For what if either of them were in possession of more than one ounce? That's criminal, and the cops were entitled to determine this, having been put on notice by the odor of burnt pot.

Point being made: stay cool and stay in. Just make sure that the 'fridge is fully stocked with twinkies

Tuesday, June 14, 2011

O.K. My John King For President campaign has failed to get off the ground. I an forlorn, emotionally crushed and clinically depressed. I may even run myself. Not into the ground but for the White House. But, consistent with my manic me, I bounce right back with a more detailed analysis.

It had been expected that Romney would be everyone's target, since he was the frontrunner. Not so. The game plan of the others was to ingratiate themselves with the heir apparent, so as to vie for the vice presidency. Romney was teflon. Everybody laid off. He was, therefore, the passive winner. But, even if nominated, he can't win. Because he's too moderate. With many years in the game, his experiences have caused him to move towards the center and that's the territory of the Prez. His extremely conservative views on social issues (pro-life, gay marriage, etc,) constitute his pitch to the radical right. He is quite aware, however, that there's a vast difference between espousing and accomplishing. And he has been quite "flexible" on the issues. He plays the room. This is an on the record vulnerability, recorded with indelible ink. He ain't gonna make it all the way. Someone else, with cleaner hands and less baggage, has yet to emerge. It will happen for the GOP.

The talk shows are proclaiming Representative Michele Bachmann as having made the best impression. As compared to whom? Admittedly, she's sailin' better than Palin. She has a more accurate knowledge of foreign affairs i,e, she knows that the Latin Quarter is more than just a foreign coin, and when asked "did the invasion of Hannibal cause the downfall of the Babylonian Empire?" she replied," it's beginning to look that way." And she does not think that "Yale" is the Swedish word for prison. Sincere, but President of the United States??????

The present candidates are honorable people but without electability. To be sure, President Obama can be criticized on certain areas of foreign policy. Like, what's our game plan re the citizenry uprisings in the Middle East? Shouldn't it be recognized that a "political vacuum" in that region is an oxymoron? Cannot any such void be immediately filled by political organizations with unlimited animosities toward the U.S. and its vital interests? See Egypt. From bad to worse is no blueprint for stability, the best of intentions, notwithstanding.
Nonetheless, with the candidates presently in play, I see the President's re-election. He's extremely intelligent, honest and moral as they come. A born leader. We've got a patriot on our hands, who doesn't shoot from the hip and whom I believe has a reasoned natural instinct to do what's right for this country.

Observe the candidates for the sake of political science, but what we've got, we should have for another four years. President Obama is made of the right stuff.

Monday, June 13, 2011

The Republican Presidential Debate plods on, but I could no longer sit still. I am compelled to be the first to declare a winner. It is the moderator, John King.

Man, that cat is smart, in a very hip way. His questions are more informative than the answers. No uncomfortable pauses. No awkward poses. His words are pronounced in machine-gun style. No notes!
He tries, in vain, to keep the candidates focused on the questions. This is not easy. Example:
"How do you create more jobs?"-------"The framers of the constitution were great men!"
"What, if anything, should be done to Medicare?"----------"I love America! And the founding fathers, too!"

Mr. King limits answers, as best he can, to keep the conversation moving. His brain is a reservoir of facts. He will not be ruffled. His is the most compelling voice .
A male candidate just expressed his preference for the I-phone over the Blackberry. The female candidate shrieked with laughter for fifteen seconds.
Fingers on the red button? Better John King's. And I hafta grab that smartphone line for my stand-up gig.
Gotta be a mothalode of humor in there somewhere.

I predict someone, presently not on the podium, shall soon"involuntarily" be persuaded to throw his hat into the square. A better fit, with the ability to integrate all factions of the G.O.P.

Saturday, June 11, 2011

In its January 7, 1992 edition, Time magazine named Judge John J. Sirica as the Man Of The Year.

"Standing firm for the primacy of law, one Judge, stubbornly and doggedly pursuing the truth in his courtroom regardless of its political implications, forced Watergate into the light of investigative day.......
He simply did not believe that the seven lowly burglars who had wiretapped Democrat National Committee Headquarters at Washington's Watergate complex in June, 1972, were a self starting team working alone. He applied pressure until he got a scandal-bursting response. Once James W. McCord began to talk, a third-rate- burglary came apart at the seams."

I represented Mr. McCord. Here are some of Judge Sirica's actions during the trial, to which I strongly objected, and which I believe, to this day, were improper.

It could not be denied that my client had broken into the DNC headquarters. That's where he had been apprehended. Please note that any and all references to what Mr. McCord told me, do not constitute a breech of the attorney-client privilege. Subsequent developments nullified that relationship and whatever is herein stated is a matter of publicrecord.
Mr. McCord was head of security for The Committee To Re-Elect President Nixon. As such, he took an extremely dim view of the then ongoing anti-Vietnam demonstrations in the nation's capitol. These were not protests, they were riots. Ultra violence in front of the White House. Club wielding, rock throwing extremists. I'm not taking issue with their cause. Their manner was, to him, unnecessarily extreme and constituted a danger to the President. Police presence resulted in severe clashes, but was required to prevent escalation.
McCord, as chief of security, believed these daily outbursts were a potential threat to the President's safety. In light of the professionally orchestrated mode of these uprisings, they were believed, by some, to have been encouraged, if not sponsored, by the DNC. It was in an effort to document this alleged connection, that the break-in occurred. Mr. McCord's defense was predicated upon this belief.
There exists a recognized defense to having committed a crime, known as "duress". As a classic example, if someone holds a gun to your son's head and threatens to kill him unless you agree to drive the getaway car in a planned bank robbery, and you do so in order to save your son's life, you are not guilty of a crime. You know you are breaking the law but you are acting under duress, to protect a loved one. Utilizing that theory, its application to McCord's conduct was the legal theory of his defense. A stretch? Perhaps. It raised, however, a question of fact, to be resolved by the jury.
In the midst of my opening statement, as I was explaining this to the jury, Judge Sirica, interrupted me with an order to come sidebar. He wanted specific details of my theory. He stated that such a defense was " ridiculous" and prohibited me from taking it any further. I argued that it constituted a jury question, but to no avail. The only thing I could think of, in attempting to continue my opening statement, was to espouse general statements of law (burden of proof, presumption of innocence, etc,) to the jurors, who were desperately searching for the missing segue. My prepared theory of defense was no more. Quite a beginning to a heavily media covered case. All in front of the jury, yet.

Later, as the prosecution was nearing the completion of its case-in-chief, the Judge called defense attorneys into his lobby. The court stenographer was present. Judge Sirica turned to me, pointing his finger, and loudly and sternly directed me to tell my client that it was still not too late. He then, immediately, asked me if I thought his remark was a threat. I was taken off guard. I instantly responded, "No, Your Honor." He then addressed the co-defendant's (G. Gordon Liddy) counsel and posed the same question. "No, Your Honor." He ordered the transcript of this lobby proceeding to be impounded. It was not for public consumption and could not be referenced by anybody, at any time, until the impoundment order was lifted.
That evening, I second-guessed myself to hell and back. Of course that had been a threat. Fess up to me or a grand jury, right now. If you don't, you'll be hit with the maximum sentence.
Here was a trial judge openly expressing his predetermination of the defendants' guilt, coupled with a threat, should they refuse to incriminate themselves and others. And I hadn't pushed back. Bully wins. Coward loses. For my client's sake and my own self respect, this had to be the subject of an attempt to rectify.
The next morning, I told the clerk that I wanted a lobby conference before the jury was brought in. Judge Sirica may have thought I was about to announce my client's acceptance of his "offer".
I told him that I had rethought the matter; yes, his remarks did constitute a threat; and that he should recuse himself from the case and immediately declare a mistrial. The atmosphere was not exactly serene. Contempt time in the can was looming. But, that didn't happen. The Judge reddened, denied my requests, as I descended to yet a lower rung on his shit-list. At least, I could ease up on myself.

It was time for closing arguments. What could I say? There was only one thing I could reference.
One of the prosecution's witnesses had been a member of the Administration whose job had put him in daily contact with McCord.When his direct examination concluded, Judge Sirica recessed for lunch. As we exited the courtroom, I spotted the witness walking down the corridor with his lawyer. I went up to them and asked counsel if I could ask his client a few questions. "You may, unless I advise him not to."
Fair enough.
"Sir, if I asked you to describe my client's reputation within the Committee To Re-Elect The President, what would you say?"
"Excellent. A dedicated public servant."
"And what is your opinion of his job performance?"
"The most competent and reliable security expert I've known."
When court resumed and the witness retook the stand, I elected to cross-examine.
Same questions, same answers. The U.S. Attorney and Judge Sirica dropped their jaws. How could I have dared ask those questions of an adversarial witness? Was I one of the ominous co-conspirators yet to be revealed? A simple, non-complex and permissible pre-lunch encounter was never to be considered in the paranoid atmosphere that had permeated Washington.
My closing was centered on that cross-exam exchange. I kept repeating that "my client is not a criminal."
I kept pointing out that every crime required a criminal intent and my client didn't have it. He was not a criminal. Somehow, I argued for 45 minutes. Weak in substance but strongly presented. And, I had the jury's attention.
When I concluded, Judge Sirica called a 15 minute recess. The jurors rose and began to file out. This caused them to walk by the bench. As they did so, the judged said, to each one of them, "Keep your eye on the ball. Keep your eye on the ball."
To me, his meaning was clear. Don't let this medicine man pull the wool over your eyes. His client is guilty. Don't be taken in by smoke and mirrors.
My objection and renewed motion for mistrial was, not surprisingly, overruled.

Judge Sirica passed away in 1992. As a result of his prophetic conduct of the burglary trial and all subsequent "Watergate" trials, he has been universally hailed and saluted. I in no way seek to detract from his heralded legacy. I simply point out that, as a criminal defense attorney, it is my opinion that his attitude was inconsistent with the appearance of an impartial judge. It is not unusual for a judge to entertain a subjective conclusion as to the guilt or innocence of a defendant. But to publicize it as his compass for navigating a trial, is difficult for me to digest.

I am, no doubt, in a decided minority. Perhaps, that is as it should be. It cannot be denied that he was sincerely devoted to the administration of justice and that he is remembered as a patriot. In that sense, I deem myself fortunate to have been a witness to history being made.

Thursday, June 9, 2011

In the ongoing retrial of former Illinois governor Rod Blagojevich, the defendant, yesterday, ended seven days on the witness stand, testifying in his own behalf. He had been grilled, in cross examination, for over three days. He is charged with trying to shake down executives for contributions and seeking to sell or trade President Obama's vacated US Senate seat for a top job or campaign cash. His first trial, last year, ended with jurors deadlocked on all but one count. He was found guilty of lying to the FBI. He did not testify at that trial. The government's case was, in the main, predicated on incriminating wiretap transcripts.

When faced with a retrial, a defendant is confronted with a crucial decision. Does he play the same cards or take an alternative route? Generally, the prosecution is the same. A consistent shock and awe. Any game change comes from the defense if a different strategy is available. Here, there was. Blagojevich elected to testify in his own behalf. This was a ballsy decision. It is fraught with risk which the defendant chose to assume.
In the theoretical practice of criminal law, the defendant has no burden to prove anything. He is not obligated to present any evidence. The sole burden of proof is on the prosecution: guilt beyond a reasonable doubt.
In practicality, however, I believe the defendant does have a burden: to establish a reasonable doubt. A jury, instructions of law, notwithstanding, could have the mindset of "Where there's smoke, there's fire. If the accused didn't do it, let him take the stand and say so. Let him be tested by the ordeal of cross examination." Blagojevich did just that.

In order to opine responsively, you must be present at the actual trial. I was not.
You cannot rely on newspaper coverage. But one thing occurred which is not in dispute and which could have had significant jury impact.

At the end of cross examination, as Blagojevich stepped off the witness stand, he tried to shake hands with the lead prosecutor, who had been his interrogator. He was rebuffed. He was snubbed. Picture the scene in front of the jury. The defendant, standing with an extended empty hand, after three days of intensive examination.
Was this planned or instinctive? The jurors had an up close and personal view of this. This was in layman's land. The jury's territory. They relate to this. If they thought the move was sincere, who knows, for certain, what their inside reactions were? They may begin deliberations tomorrow. We'll soon know.

If the former governor is acquitted, the verdict may have turned on a rejected handshake.
That's the stuff of jury trials.

Tuesday, June 7, 2011

I watched Representative Anthony Weiner's mea culpa press conference.
Several oh-so-negative conclusions must be drawn.
When first confronted with the accusations, he looked everyone straight in the eye and, without blinking, claimed to have played no part in the sending of pictures and/or messages to more than one woman. Blamed it on the hackers. He is a major political figure and must now face the consequences. The members of his own party are disowning him in a highly charged political year. His wife must be devastated.
He came clean only because he was cornered. His was the lead story on major evening news. Branded a leper by acclamation. Demands for his resignation. Nothing in mitigation. A public crucifixion. Even his name does him in.

But, I feel sorry for him as a person. He was not faking his personal anguish. This was no act. He was whipped. His tears were legit.

The lynch mob would reply, "Feel sorry for what? He's an acknowledged liar!"
True. But when is enough, enough?
Undoubtedly, there is more to come. More photos, different versions from the women involved, and Lord knows what.
But, ask yourselves: is his conduct any worse then President Clinton's? Former Governor Eliot Spitzer's? I don't think so. It might be even less egregious. And those two men not only survived, but are, today, doing quite nicely, thank you. They were elected public officials who ventured down the avenue of denial, in shameful style. But, over time, their circumstances improved.
I'm not claiming that three wrongs make a right, but they each went through their personal hells.
Representative Weiner's actions were not illegal. His notoriety will continue. So will his shame. His fate should, and will, be decided by his constituency. But, as far as his being pilloried, do we ignore the concepts of atonement and redemption?
Who, among us, has never told a lie? Even without the elected official aspect, lying is a despicable act.
It often has, however, its own built-in apparatus for punishment. Representative Weiner is immersed in that, right now.
Thus, if any of you, out there, also feel sorry for him as a person, good for you and your moral compass.
You've resigned from the mob. The first stone throwers.

Sunday, June 5, 2011

An AP item in today's Boston Globe reveals that "a Connecticut couple completed their quest to visit every state in the country before they were killed crossing a road in Ohio." They had just finished the last leg of their 50-state quest, when they were struck by a minivan in Liberty Township. The driver has not been charged. The accident remains under investigation. The victims were 73 and 71 years of age.

I was sprightly walking merrily along when I was pulled back as if a stop sign had come out of nowhere to smack me in the face. Questions ran through my mind, but the bottom line was to ask "why." No answer satisfies. I am a spiritual person, but unable to bring in a Deity to provide an explanation. Two people, having just accomplished a retirement endeavor, are removed from life as a what? As a crashing tribute to their magnificent feat? An endorsement of the notion that each of us has a pre-designated time limit which determines the length of our earthly existence? Why do bad things happen to good people? Maybe, we are not part of any grand scheme, and things, good and bad, occur by happenstance. The "when" and "why" of it is not within our control. Maybe the concept of "fate" should be banned, on the ground that it is inconsistent with the idea that our life is what we make it to be. Maybe God creates with a clean slate, and directs the inhabitant to make it as good, in the spiritual sense, as possible, at which time the Creator wishes good luck and walks away. The individual is blessed with the freedom, or cursed with the responsibility, of dealing with the inevitability of bad things. Is it unreasonable to expect that God has His eye on each and every one of us, at the same time, all the time?
Did not Elie Wiesel abandon his belief in God after surviving the Holocaust?

Perhaps we shouldn't even try to wrestle with this phenomenon. Maybe you either accept or you don't. In the absence of concrete evidence, you chose to believe, or you don't. Evolution or somebody up there. If your decision brings you serenity and the ability to live a good life, then you've found what's right for you. Whenever a crisis turns out o.k., why do I find myself saying, "Thank God?"
A spontaneous reflex or an acknowledgement?

And, count how many times I've used the words "maybe" and "perhaps". And the number of intended statements which end in question marks. The elusiveness of certainty.

Many years ago, an uncle, a very successful doctor, hosted an elegant dinner party at his magnificent home. He was very upbeat in manner, but he didn't look well. At all.
When we were having drinks, he beckoned me to where he was standing alone, for the moment.
He put his hand on my arm and said, seemingly out of context of everything,"Gerry, get the most out of every day of your life. Live it to the fullest." More commandment than advice.
I stared at him. Up close, he was skin and bones. I said nothing, but never forgot. His eyes were so penetrating.
One month later, he succumbed to cancer.

I'm taking his advice. No reckless wild side, but no energy wasted by past regrets, either. We're more than plants.
Use any name you want for him/her/it. There's a higher force as the architect here, and I'll be prepared for two-way communication any time. All the time. I'll grab at happiness whenever it's reachable. Just don't hurt other people. Forget the words "if only." Be a good person and surround yourself with the same.

Friday, June 3, 2011

Former Senator John Edwards was indicted today for allegedly violating the campaign donation law. Although details are still developing, it can be said that the accusation is predicated upon Edwards requesting and receiving two donations from two individuals, totaling almost one million dollars, for the purpose of supporting Edward's mistress and their love child. I'm posting this, in spite of the information reservoir not yet full, because what sticks in my throat is ascertainable now, and not likely to change. In the interests of full disclosure, those who have followed this blog are aware that I readily acknowledge my trait of compassion with pride.

The man stands thoroughly, publicly disgraced. He did not volunteer his wrongdoing, it was discovered. His fall from grace has decimated his reputation, which is his life. He has come forth with the expected apologies, but he is, and will remain, shunned, in, ironically, his own court of public opinion. He stands uniformly condemned.

This case will not stand or fall on a question of fact. They can almost be stipulated. It will turn on a question of law.

Were the monies received as a campaign contribution (guilty) or as a personal gift(not guilty)?
That is the question.

Please note well: this is a case of first impression. The statute, allegedly violated, has never been prosecutorialy interpreted so as to apply to the facts at hand.

What, then, is the motive for the federal charges? What is the priority so obsessively attached to this case? You guess first. The law has never been used this way.

To me, this matter called for a pass by the Justice Department. Edwards has no more unbroken bones to break. He's in purgatory. Should a kicking foot be able to reach that far down?
I say no. Am I a compassionate activist?

In Massachusetts, the O.U.I. statute defines "driving under the influence" as one who has consumed enough alcohol so as to impair his ability to drive safely. Note these words, carefully.
You don't have to be falling down drunk. You don't, necessarily, have to appear "shitfaced" to an objective observer. If you consume one bottle of beer, or one glass of wine, which causes your ability to drive safely to drop from 10 (sobriety) to 9, you are embraced by the statute. Tests have been run using that standard. Stanchions are strategically placed on a road. Volunteers, determined to be alcohol free, are instructed to drive in between these obstacles, without striking or knocking them down. There is no problem in doing this. Then the volunteers are each given a bottle of beer,or glass of wine, and asked to repeat the test. A majority of them will hit one or more stanchions, and, perhaps, cause one or more to fall. This demonstrates the slight amount of alcohol required to impair one's ability to drive safely. To be sure, the required amount of alcohol will vary with the individual's tolerance, but the point is, nonetheless made,i,e. it don't take much booze at all, to violate the statute's narrow definition of impairment to drive safely.

But, will juries listen to and adopt this strict standard, in deciding the issue of "driving under"?
The unsatisfying answer is : it all depends.

And, oh, for the record, I suggest that you consider purchasing stock in a particular company.
That is to say that whenever a defendant in an O.U.I. case is asked how much he had to drink, in 99% of the cases tried before me, the answer will invariably be "two Bud Lights"! I don't care if the individual is in an eyes-open-coma, all he had were two Bud Lights. This answer is so ingrained in him that, when called to the stand and asked for his name, the betting is 50-50 that he will identify himself as "Two Bud Lights". The court docket will thus reflect the name of the case as "Commonwealth v. Two Bud Lights". Check it out, man, those are the driver's suds of choice.
In one case, the defendant claimed to have been drinking two (it's always two) cans of Coors, I found him not guilty, on my own, and hailed him as "The Last of the Truthsayers". (jes' kiddin', folks.)

Used to be, that the booking of the defendant at the police station would be videotaped, as a matter of course. by the police. This was deemed to provide visual evidence of the arrestee's condition. And, it did, except for the fact that by the time the suspect had dealt with the arresting officer at the scene, perhaps taken some field sobriety tests , when he arrived at the station, he had sobered up, considerably. So, what had been deemed a prosecutorial tool, backfired and played into the defendant's case.

Tactically, their are various gambits which a defense attorney uses to respond to prosecutorial evidence.
If the client has failed a breathalyzer, he asks the jury, "how can you depend on a machine?"
If he has failed field sobriety tests, "they are designed for failure" and he asks the jurors to try the tests, themselves, in the jury room. In truth, they are quite difficult, even if you are (pardon the expression) sober as a judge.

But in an O.U.I. case, which does not involve personal injury or property damage, the attorney takes aim on the intangible factor. He can't address it directly. He can't even specifically mention it. But, it's there for him to utilize,i.e, "Ladies and gentlemen of the jury, does not your common sense, based upon your own life's experience, tell you that just because a man has a beer or two, or a glass of wine or two, he is not violating the statute if he drives a car?"

He is referring to, and relying upon, the indelible thought that is in the minds of most, if not all, the jurors:

About Me

worked my way through college and law school as a stand-up comic. 36 years as criminal defense attorney followed by 13 years on the bench as a Massachusetts District Court Judge. Developed a sense of timing from stand-up which has been invaluable in a courtroom. Accept it: a trial IS show biz. For more, Google "gerald alch."